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Internet access is threatened as Ireland's graduated response settlement is confirmed by a court to be compatible with data protection legislation.

Legal context and facts

In April Mr Justice Charleton, sitting in the Irish High Court, considered whether a graduated response, commonly referred to as a ‘three strikes’ arrangement, was compatible with data protection legislation. The case arose due to concerns raised by the Data Protection Commissioner regarding the settlement reached between music industry giants EMI, Sony, Universal, and Warner, and Ireland's leading internet service provider Eircom.

Under the terms of the agreement, specialist technology companies will be hired by the record labels to detect computers engaging in copyright infringement and illegal file sharing. This information will then be passed on to Eircom, which will identify the subscriber based on data held on its IP address and notify them of the infringement in their next bill. If there is a second instance of copyright infringement, Eircom is obliged to write a formal letter warning the subscriber that his or her internet service will be terminated, should illegal downloading continue. On the third occasion, the general internet service of the subscriber will be disconnected.

The Data Protection Commissioner raised three issues, regarding which the settlement was potentially objectionable as being contrary to data protection legislation.

The first question raised was whether IP addresses, in the hands of EMI and taking account of the purpose for which they are collected, constitutes ‘personal data’ for the purposes of the Data Protection Acts.

Charleton J began by stating that, in order to constitute personal data under the Act, the information must allow someone to identify a living individual, using the data alone, in conjunction with other information in the possession of the data controller, or information likely to come into its possession. In the case at hand, the purpose of identifying IP addresses is to stop persistent illegal downloading without resorting to individual court actions by cutting off access to the tools facilitating the downloading. EMI has no interest in personally identifying the individuals who are infringing because it is unnecessary to do so to achieve its goals under the terms of the settlement. Therefore, the judge reasoned, it was not likely that EMI would use the IP addresses to identify individual names and addresses.

The second question was as follows: assuming that it is permissible under the legislation for Eircom to process the personal data of subscribers, is the termination of internet subscription unreasonably prejudicial to the fundamental rights and freedoms or legitimate interests of the data subject?

When determining whether internet disconnection is an affront to the fundamental rights and freedoms of the data subject, Charleton J stated that the proportionality of the inference must be based on the circumstances. He opined that, given the constitutional and human right to exploit one's creative works, Eircom was acting responsibly and upholding the rights of copyright owners by implementing the sanctions in accordance with the protocol of the settlement. Since a corporate policy which promotes lawfulness in this manner will not be considered disproportionate, the termination of internet access because of three copyright infringements is not unwarranted.

The third question raised by the Data Protection Commissions was whether it was valid for EMI and Eircom to implement the third stage envisaged under the settlement; namely, the termination of an internet user's subscription in circumstances where (a) in doing so they would be engaged in the processing of personal data for purposes relating to the commission of a criminal offence and (b) the termination of an internet user's subscription by Eircom would be predicated on the internet user in question having committed copyright infringement, but without any such offence having been investigated by an authorized body or fault being determined by a court during a fair and impartial trial.

Charleton J based his answer on that fact that neither EMI nor Eircom have any interest in initiating criminal proceedings against the internet subscribers. The settlement is based upon civil law principles because only civil copyright infringement is being redressed by the graduated response system. As such, liability is established by external evidence, as opposed to proof of intent or recklessness necessary in a criminal trial. No investigation using sensitive personal data would be required because no one is being accused of an offence which would need to be proven before an authorized body or during a fair and impartial trial.

The graduated response, ‘three-strike’ settlement between EMI and Eircom was deemed to be lawful.

Analysis

Beyond the parties to the settlement, two groups of stakeholders were concerned with this judgment: owners of copyright material and internet users. Charleton J began his judgment by stating the purpose of the settlement, which was ‘to diminish the theft of copyright material over the internet’. The justness and nobility of this goal in the eyes of the judge overshadowed any legitimate interest the general internet subscriber might have. Charleton J acknowledged that internet disconnection is a serious sanction, and there is an argument that for Eircom to effect such disconnection would be an imposition on human freedom. This, however, was brushed aside immediately as the judge noted that ‘There is no freedom to break the law’.

Little attention was paid to the interest of those who might have their internet connection terminated, perhaps because neither the Data Protection Commissioner nor any consumer advocacy groups opposed to a graduated response agreement made representations on behalf of internet users. No mention was made of the 2009 European Parliament recommendations contained in the Security and Fundamental Freedoms on the Internet Report, which was written in the wake of similar ‘three strike’ agreements taking place in France. The Report emphasized the importance of the internet in terms of promoting democratic initiatives and political debate, as well as ensuring freedom of expression and the dissemination of knowledge. Tellingly, it stated that ‘e-illiteracy will be the new illiteracy of the 21st Century; ensuring that all citizens have access to the internet is therefore equivalent to ensuring that all citizens have access to schooling and such access should not be putatively denied by governments or private companies’. The prevalence of copyright infringement occurring over the internet did not move the vast majority of MEPs to endorse internet disconnection as a proportionate measure. Similarly, the Constitutional Council of France rejected Loi HADOPI until it was revised to ensure that only a judge would have the power to disconnect an individual's internet. Charleton J focused on copyright being a fundamental right for the recording artists but, unlike the European Parliament and French Constitutional Council, placed little stock on the human rights depending on one's access to the internet.

Practical significance

The consequences of this settlement are difficult to predict. While other ISP have indicated their unwillingness to conform to similar agreements, Charleton J has commented on the injustice of Eircom bearing the burden alone, and has stated that the issue of whether Ireland's other ISPs will be obliged to administer the settlement will be before the Commercial Court.

As technology, almost inevitably, continues to evolve at a pace faster than the law can regulate, avid copyright infringers will find alternative means of maintaining their free intake of music. Technical wizardry capable of disguising activity over the internet is already in existence, and if the EMI/Eircom settlement becomes the industry norm, these techniques will become increasingly widespread. Unfortunately, those most likely to suffer will be infrequent infringers.

In the digital age, there is a need for progressive judicial perspectives which give adequate consideration to the increasing importance of the internet. The plight of copyright owners, although real, cannot continue to eclipse the rights of internet users as it has in this judgment.

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